Germain Katanga

Today, the Appeals Chamber of the International Criminal Court decided by majority, with Judge Kourula and Judge Trendafilova dissenting, to dismiss the appeal of Germain Katanga against the decision entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings” of Trial Chamber II of 20 November 2009. Judge Nsereko, presiding judge in this appeal, read a summary of the judgment in open session.

On 30 June 2009, Mr Katanga filed a motion requesting a declaration for unlawful detention and a stay of the proceedings against him for his alleged unlawful arrest and detention in the Democratic Republic of the Congo prior to his surrender to the Court. On 20 November 2009, Trial Chamber II rejected the Defence motion without considering its merits, finding that it was submitted too late, inter alia because the motion was filed seven months after the Trial Chamber’s invitation to the parties to submit any relevant issues on which they sought a ruling of the Chamber.

The Appeals Chamber observed that the Court’s legal instruments underscore the need for diligence and expeditiousness in the proceedings and agreed with the Trial Chamber’s determination that the parties must act “in a timely manner” or within a reasonable time, in keeping with considerations of efficiency and judicial economy. The Appeals Chamber found that the decision of the Trial Chamber did not infringe Mr Katanga’s right to a fair hearing and that he had been given adequate notice and opportunity to raise the issue of his alleged unlawful pre-surrender arrest and detention.

The dissent considered that the Trial Chamber erred when it decided that the Defence motion was inadmissible for having been filed at too advanced a stage in the proceedings. Accordingly, the dissent concluded that the Trial Chamber’s decision should be reversed and remitted to the Trial Chamber for a consideration on the merits.

In reaching this conclusion, Judge Erkki Kourula and Judge Ekaterina Trendafilova found that the Trial Chamber erred in establishing, for the first time in its decision, requirements applicable to the filing of the Defence motion and applying them retroactively to the detriment of Mr Katanga. They also found that the Trial Chamber erred in the exercise of its discretion when it failed to properly balance the factors in article 64 (2) of the Statute, placing too much emphasis on expeditiousness at the expense of the rights of Mr Katanga.